Taylor,
TCJ
:—This
is
an
appeal
heard
in
Toronto,
Ontario,
on
September
23,
1985,
against
an
income
tax
assessment,
in
which
the
Minister
of
National
Revenue
imposed
a
late
filing
penalty
of
$9,705
under
subsection
162(1)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
as
amended.
The
president
of
the
corporation,
Mr
Jack
Duncan,
stated
that
he
received
the
completed
income
tax
returns
from
his
auditors,
the
week
before
July
31,
1983
—
the
filing
deadline.
He
had
been
aware
they
were
to
be
filed
by
that
date,
or
if
they
were
postmarked
by
Tuesday,
August
2,
1983,
(since
July
31,
fell
on
a
Sunday,
and
Monday,
August
1,
was
a
holiday),
it
was
his
understanding
that
the
Revenue
Canada
administrative
practice
would
permit
there
be
no
late
filing
penalty
assessed.
He
signed
them,
signed
the
cheque
for
$194,100
in
income
taxes,
and
placed
them
on
the
“mailing
table”
in
his
office
on
August
2,
1983,
according
to
his
testimony.
He
agreed
with
the
Minister's
statement
that
the
envelope
containing
the
returns
was
date
stamped
—
by
the
postal
machine
in
his
own
office
—
on
August
4,
1983,
and
that
the
date
of
"receipt"
of
the
returns
according
to
a
Revenue
Canada
stamp
was
August
8,
1983.
Mr
Duncan
suggested
that
perhaps
the
office
postage
meter
had
been
incorrectly
programmed.
It
was
the
position
of
the
appellant’s
counsel
that
the
Court
could
accept
the
testimony
of
Mr
Duncan,
and
that
"the
late
filing
penalty
.
.
.
was
.
.
.
under
the
circumstances
of
this
case,
contrary
to
the
administrative
practice
of
Revenue
Canada,
and
unreasonable
and
inequitable".
Counsel
for
the
appellant
recognized
that
there
was
a
statutory
onus
on
the
appellant
to
overturn
the
facts
and
assumptions
upon
which
the
Minister
had
made
the
assessment
of
penalty,
and
that
the
case
of
Stanford
Management
and
Holdings
Inc
v
MNR,
[1984]
CTC
2517;
84
DTC
1455,
should
not
be
interpreted
as
relieving
the
appellant
of
that
obligation.
For
the
Minister,
the
situation
was
simple
—
the
appellant
corporation
had
not
succeeded
in
showing
that
the
Minister
was
incorrect
in
accepting
as
“prima
facie”
evidence
that
the
August
4,
postage
meter
date
stamp,
and
August
8
receipt
of
documents
stamp
were
the
essential
ingredients
to
be
considered
—
notwithstanding
Mr
Duncan's
firm
belief
that
he
had
complied
with
the
Act.
Both
counsel
noted
that
there
was
not
a
great
deal
of
recent
jurisprudence
on
the
subject,
and
that
is
perhaps
understandable
in
light
of
the
direct
application
of
the
Act
which
flows
out
of
section
162(1)
thereof.
This
is
not
a
case
where
the
question
of
whether
“mailing
constitutes
filing"
arises,
nor
where
any
party
other
than
the
president,
Mr
Duncan,
stands
in
the
position
of
direct
responsibility.
That
obligation
he
had
accepted
forthrightly.
This
is
simply
a
matter
of
whether
the
facts
upon
which
the
Minister
based
his
assessment
of
the
penalty
were
sufficient
for
that
purpose
and
if
they
(the
facts)
have
been
undermined
or
diluted
by
the
evidence
and
testimony
brought
out
at
the
Court
hearing.
I
do
not
believe
that
the
testimony
of
Mr
Duncan
can
serve
in
this
situation
to
outweigh
the
prima
facie
case
presented
by
the
Minister,
in
my
comprehension
of
the
balance
of
probabilities.
At
best
Mr
Duncan's
testimony
only
shows
that
he
did
handle
the
returns,
it
does
not
even
show
that
they
were
ever
mailed,
let
alone
on
August
2,
1983.
Reference
could
be
made
to
the
recent
case
of
Harvey
Uffelman
v
MNR,
[1985]
2
CTC
2323;
85
DTC
621
in
which
a
somewhat
more
positive
support
for
the
appellant’s
contention
was
not
accepted
by
the
Court.
It
would
appear
to
be
difficult
in
matters
of
this
kind
for
the
Court
to
accept
even
sworn
testimony
in
preference
to
available
substantive
evidence.
The
appeal
is
dismissed.
Appeal
dismissed.
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